ALIEN SUFFRAGE

citizenship and voting are so closely linked in the modern political imagination that many Americans are shocked to learn that the United States once had a rich tradition of noncitizens' participating in local, state, and national elections. The practice first appeared in the colonies, which only required voters to be propertied white male residents—not British citizens. After the american revolution and ratification of the Constitution, many of the states, like the Commonwealth of Virginia, continued to enfranchise propertied white male aliens in all state and therefore—under Article I of the Constitution—all federal elections. Congress also gave aliens the right to vote for representatives to their territorial legislatures when it reenacted the northwest ordinance in 1789 and authorized the election of representatives to state constitutional conventions in Ohio, Indiana, Michigan, and Illinois. Although the War of 1812 upset alien suffrage in numerous states, the policy revived as the nation pressed westward in the 1840s and states such as Minnesota, Washington, Kansas, Nebraska, Nevada, Dakota, Wyoming, and Oklahoma tried hard to attract new residents by granting "declarant aliens"—those who had declared their intention to become citizens—voting rights and the symbolic standing they confer.

The civil war polarized public sentiment around alien suffrage. Southerners attacked the political influence of immigrants, who generally arrived hostile to the institution of slavery, while Northern states and politicians celebrated alien suffrage as a way to integrate newcomers to democratic life. The Union also drafted declarant aliens into the army on the theory that they were effectively state citizens, even if not yet citizens of the nation. Meanwhile, delegates to the Confederate constitutional convention in Montgomery, Alabama, wrote a blanket ban on alien voting into the confederate constitution. In the wake of Northern victory in the Civil War, thirteen new states adopted declarant alien suffrage, including Southern states now subject to reconstruction governments eager to attract new blood and honor the valor of the many alien soldiers who fought for the Union. By the close of the nineteenth century, about half of the states and territories had experimented with giving aliens the right to vote alongside citizens.

The rise of anti-immigrant feeling at the turn of the twentieth century altered the political terrain that had nourished alien suffrage. Many states revised their constitutions and statutes by imposing a U.S. citizenship test for voting. By the time world war i was over, the tide had shifted dramatically against alien suffrage, and the last state—Arkansas—gave it up in 1926. Thus, modern political nationalism and xenophobia displaced the natural rights logic that taxpaying aliens should be represented and the republican norm that communities benefit by participation of all members.

During the long history of alien suffrage, no court ever found noncitizen voting unconstitutional. On the contrary, state and lower federal courts consistently upheld the practice, and the Supreme Court repeatedly signaled its own acceptance of it. In 1874, in minor v. happersett holding that women had no constitutionally protected right to vote, the Court invoked alien suffrage to prove that citizenship and suffrage are independent legal categories that do not necessarily imply one another. Again in 1904, in Pope v. Williams, the Court emphasized that states set voter qualifications themselves and have discretion to define persons who are not U.S. citizens as state and local citizens. As recently as 1973, the Court observed that U.S. citizenship is just a "permissible criterion" for voting rights, not a mandatory one. The Court's reading follows logically from the contrast between the Constitution's explicit U.S. citizenship requirements for service in Congress and its delegation of control over both state and federal qualifications for voting to the states themselves. Of course, alien suffrage is not constitutionally compelled—the Constitution's numerous suffrage provisions guarantee voting rights only to "citizens"—but it is clearly allowed, even today.

Whether alien suffrage has a vibrant future, as opposed to a past, remains to be seen. The practice survives as a remnant in numerous localities, and has found some renewed vitality in recent years. Both the New York and Chicago school systems permit noncitizens to vote in community school board elections. In 1992, the city of Takoma Park, Maryland, which borders Washington, D.C., conducted a referendum on whether to change its municipal charter to give all residents, regardless of citizenship status, the right to vote in city council, mayoral, and initiative elections. After rich debate on the subject, the measure passed and the City Council unanimously made the change. Proponents argued that immigrant populations are ignored by government if they lack votes, which are the hard currency of political power in democracy, and that noncitizen voting would become a pathway to full citizenship. They also invoked the pervasive European experience with noncitizen voting and the decision of the European Community to allow all citizens of member nations to vote in whatever local community they inhabit. It is possible that the disappearance of borders as barriers to capital investment and labor markets will increase the willingness of American communities to open up their political processes to new immigrants. But it is equally possible that globalization will make us cling harder to the twentieth century's nationalist marriage of voting with federal citizenship. At any rate, the issue of alien suffrage raises profound and interesting issues about the contested meanings of democracy, citizenship, and community membership.

Jamin Raskin
(2000)

Bibliography

Neuman, Gerald L. 1992 "We Are the People": Alien Suffrage in German and American Perspective. Michigan Journal of International Law 13:259–335.

Raskin, Jamin B. 1993 Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage. University of Pennsyluzuia Law Review 141:1391–1470.

Rosberg, Gerald M. 1977 Aliens and Equal Protection: Why Not the Right to Vote? Michigan Law Review 75:1092–1136.